Sincock v. Roman

• Decision Date: 16 October 1964
• Docket Number: Civ. A. No. 2470.
• Parties: Richard SINCOCK et al., Plaintiffs, v. Mabel V. ROMAN et al., Defendants.
• Court: U.S. District Court — District of Delaware

233 F. Supp. 615

Richard SINCOCK et al., Plaintiffs, v. Mabel V. ROMAN et al., Defendants.

Civ. A. No. 2470.

United States District Court D. Delaware.

September 16, 1964.

As Amended October 16, 1964.

Vincent A. Theisen and Victor F. Battaglia, Wilmington, Del., for plaintiffs.

David P. Buckson, Atty. Gen., Daniel L. Herrmann, Frank O'Donnell, Wilmington, Del., Max Terry, and James H. Hughes, III, Dover, Del., for defendants.

H. Edward Maull, Georgetown, Del., and Bruce M. Stargatt, Wilmington, Del., amici curiæ.

Before BIGGS, Circuit Judge, and WRIGHT and LAYTON, District Judges.

PER CURIAM.

The history of this litigation is set out in the decisions cited in the footnote.¹ Following the affirmation of our judgments by the Supreme Court in Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964), the General Assembly of Delaware enacted two statutes, respectively on July 6 and July 8, 1964, to reapportion Delaware in respect to the election of members of the General Assembly of Delaware. Not yet codified, the two statutes have been referred to throughout these proceedings and are referred to in this opinion as "S.B. 332" and "S.B. 336".^1a

S.B. 332 provides for a House of Representatives to be composed of 35 members, to hold office for two years, a representative to be elected from each of 35 representative districts, and for a Senate to be composed of 18 members, to hold office for four years, to be elected by staggered terms, one Senator from each of the 18 senatorial districts. S.B. 332 provides also for the allocation of representative districts and senatorial districts throughout the State, and that the General Assembly by a later Act should determine the boundaries of the several representative and senatorial districts within the City of Wilmington and within the several Counties "in such manner as there shall be substantial equality of population among the several Representative Districts and among the several Senatorial Districts."

S.B. 336 establishes boundaries of representative and senatorial districts for the election of members of the General Assembly throughout Delaware. Obviously, S.B. 336 purports to be the Act referred to in the last sentence of the preceding paragraph of this opinion.

The certified judgment of the Supreme Court, affirming our judgments, was received by this court and duly docketed here on July 13, 1964. On the next day, the plaintiffs filed a document entitled "A Motion to Implement the Mandate of the Supreme Court of the United States." This motion alleges in substance that S.B. 332 and S.B. 336 do not reapportion Delaware insofar as members of the General Assembly are concerned substantially on a population basis, "one vote —one person", and in accordance with other standards set out in Roman v. Sincock, supra, and in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964).

The motion also asserts in substance that S.B. 332 in its allocation of representative districts and allocation of senatorial districts results in failing to guarantee a General Assembly apportioned substantially on a population basis, "constitutes an open invitation to partisan gerrymandering.", and that S.B. 336 has gerrymandered the City of Wilmington "with the deliberate intention of denying representation in the General Assembly to Republicans who were registered in Wilmington."

The plaintiffs by their motion ask this Court to enjoin the respondents, election officers and members of the Board of Canvass of the State of Delaware, from conducting, canvassing or proclaiming the results of, or otherwise engaging in any general election where the members of the General Assembly are to be elected under the provisions of the two bills and also seek to have the two statutes declared unconstitutional. They further seek to have this Court enter a decree to cause a reapportionment of the General Assembly of Delaware in accordance with the principles enunciated in opinions of the Supreme Court hereinbefore referred to, and, in particular, on a "one vote — one person" basis.

Following pretrial conferences, an order was filed on July 21, 1964, providing, among other things, that the defendants should file answers, motions, or other pleadings on or before July 27, 1964. The Committee of 39, Inc., a Delaware non-profit corporation, the membership of which comprises a number of public-minded citizens of Delaware, was granted leave to appear as amicus curiae. The order of July 21 also ordered that the "Motion to Implement"² should also be treated as a motion for a preliminary injunction as well as a motion for final relief. Answers and motions to dismiss and for summary judgment have been filed by the defendants. The plaintiffs also moved orally for an injunction to stay the state-wide primary which was held on August 15, 1964. Some of the issues presented by the motions are set out below.³ All the motions referred to have been denied.

The court, treating the "Motion to Implement" as an amendment to the original complaint, as amended,⁴ and the answers thereto as presenting justiciable issues, on August 3, 1964 proceeded to a hearing of the case. Numerous witnesses testified on behalf of the parties, including certain plaintiffs and members of the Committee of 39, Inc., called by the plaintiffs. The taking of testimony and the receiving in evidence of numerous exhibits consumed more than eleven trial days. On September 4, 1964, a motion by plaintiffs for a preliminary injunction to restrain the holding of a general election scheduled for November 3, 1964 was argued. The defendants also argued on that day a motion to dismiss the action. Requests for findings of fact and conclusions of law have been filed by the parties and the motions of the parties, as just stated, are before us for our consideration and determination.

The court endeavored to divide the taking of evidence into two parts. The first part of the evidence taken was designed to go to the issue of "one vote — one person", the equality of the voting rights of inhabitants within the respective representative and senatorial districts of Delaware, and to the issues of contiguity and compactness of the election districts, as required by Roman v. Sincock, and Reynolds v. Sims, supra. See also Gray v. Sanders, 372 U.S. 368, 381, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). Compare Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). This evidence was received over the objections of the defendants to treating the "Motion to Implement" as the equivalent of an amendment to the original complaint as amended. The objections were overruled and the evidence was received subject to motions to strike made by the defendants and subject to a statement by the court that it would rule on the admissibility of the evidence at a future date. The second part of the evidence taken was designed to go to the issue of gerrymander and was received under the assumption that that issue is relevant under the equal protection clause of the Fourteenth Amendment and under the Fifteenth Amendment. This evidence was received over the objections of the defendants and subject to motions to strike made by them with the understanding that the court would rule upon the relevancy of the issue and the admissibility of the evidence at a future date.

The reapportionment design for Delaware was made by four citizens of the State experienced in politics. Separate designs were prepared for New Castle County outside of Wilmington, for Wilmington, and for Kent County and for Sussex County, each of the four citizens making a plan of apportionment for one of the respective geographic areas as indicated above in accordance with the allocations of S.B. 332. The four plans, when put together, comprised the State of Delaware as a whole. The four plans were delivered to the Secretary of State of Delaware, who in turn transmitted them to the General Assembly. Thus, the reapportionment provisions contained in S.B. 336 came into being.

In the reapportionment design for Wilmington the planner used the figures of the 1960 Decennial Census to a large extent to ascertain the representative and senatorial districts but in order to conform to the allocations and boundaries specified by S.B. 332 and S.B. 336 it was necessary to split existing election districts. In Wilmington, however, though there were 38 "splits", this did not involve estimates since complete block figures were available. There were also various splits necessary in New Castle County, outside of Wilmington, but the architect of that apportionment design used various methods of estimating the populations involved in the splits, varying from "Map" estimates and physical inspections of split districts to ratios of populations to registered voters. In one or two small areas it was necessary to guess the populations under the plan employed.

The reapportionment planner for Kent County made use of the census tracts of the 1960 Decennial Census to some extent and also employed old representative districts to form new representative and senatorial districts. Splits were necessary and in connection with these, estimates were employed as in reapportioning New Castle, outside of Wilmington.

In respect to Sussex County, the planner did not use the 1960 Decennial Census figures, but made use of old election districts, splitting them where necessary to form new representative and senatorial districts. Estimates were employed in Sussex County on about the same basis as in Kent County and in New Castle County outside of Wilmington.

In respect to New Castle County vis-a-vis Wilmington if the formula of "one vote — one person" be strictly employed, the City may be entitled to a percentage of one less representative and New Castle County outside of Wilmington may be entitled to a percentage of one more representative.⁵ Under the allotments of S.B. 332, neither the City of Wilmington nor New Castle County outside of...